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Pociunas v. American Sugar Refining Co.

132 N.Y.S. 395 Court N.Y. App. Term Decision date 1911-11-24 English

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p. 395
POCIUNAS v. AMERICAN SUGAR REFINING CO. OF NEW YORK.
(Supreme Court, Appellate Term.
November 24, 1911.)

Headnote

Dismissal and Nonsuit (§ 60[1] ) — Involuntary — Want of Prosecution.
While the power of the trial court, under Code Civ. Proc. § 822, and rule 36 of the general rules of practice, to dismiss for want of prosecu- ■ tian, is discretionary, the discretion is a legal one, and where no excuse for neglect is shown the action should be dismissed.
[Ed. Note. — For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 140-152; Dec. Dig. § 60.[1] ]
Appeal from City Court of New York, Special Term.
Action by Simon Pociunas against the American Sugar Refining Company of New York, From an order denying defendant’s motion to dismiss, defendant appeals. Reversed.
See, also, 130 N. Y. Supp. 162 .
Argued before GIEGERICH, LEHMAN, and PENDLETON, JJ.
Bertrand L. Pettigrew (James F. Barber, of counsel), for appellant.
Cass & Apfel, for respondent.

This is an appeal from an order denying defendant’s motion to dismiss the complaint for neglect to prosecute. The affidavit upon which the motion was made stated that issues of a later date had been reached in their regular order upon the calendar, and disposed of, and that the plaintiff had never served a notice of trial or placed the cause upon the calendar. No answering affidavits appear, and the question here presented is as to whether, under section 822 of the Code and rule 36 of the general rules of practice, the court could, in the exercise of its proper discretion, deny the motion, in the absence of any evidence tending to show that the neglect of the plaintiff to bring the action to trial had not been unreasonable. While, under the provisions of the Code and the rule in question, the granting of such motion is entirely discretionary, such discretion is a legal discretion, and where no excuse for the neglect is shown the order of dismissal should be granted.

Order reversed, with $10 costs and disbursements, and motion granted, dismissing the complaint, with $10 costs.